Citation Nr: 0622147
Decision Date: 07/26/06 Archive Date: 08/10/06
DOCKET NO. 93-15 884 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUES
1. Entitlement to an increased rating for pseudofolliculitis
barbae, currently rated as 10 percent disabling.
2. Entitlement to a total disability rating based on
individual unemployability (TDIU) due to service-connected
disabilities.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
M. Carr, Associate Counsel
INTRODUCTION
The appellant served on active duty from August 1975 to March
1977, with various periods of active duty for training.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from rating decisions of the Department of
Veterans Affairs (VA) Regional Office (RO) in Columbia, South
Carolina.
In September 1998, the appellant was afforded a hearing
before the undersigned Veterans Law Judge.
FINDINGS OF FACT
1. The current medical evidence of record does not reveal
clinical manifestations of pseudofolliculitis barbae.
2. The appellant's combined service-connected disability
rating is 50 percent.
3. The appellant's service-connected disabilities do not
preclude him from securing and following a substantially
gainful occupation.
CONCLUSIONS OF LAW
1. The criteria for an increased rating for
pseudofolliculitis barbae have not been met. 38 U.S.C.A. §§
1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.118,
Diagnostic Codes 7800, 7806, 7814 (as in effect prior to
August 30, 2002); Diagnostic Codes 7800, 7806, 7813 (2005).
2. The schedular requirements for a TDIU rating are not met
and referral to the Director, Compensation and Pension
Service for extra-schedular consideration is not warranted.
38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340,
3.341, 4.16 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased Rating
Disability evaluations are determined by comparing the
veteran's present symptomatology with the criteria set forth
in the VA's Schedule for Ratings Disabilities. 38 U.S.C.A.
§ 1155; 38 C.F.R. § Part 4. Where there is a question as to
which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Although a rating specialist is directed to review the
recorded history of a disability to make a more accurate
evaluation, the regulations do not give past medical reports
precedence over current findings. 38 C.F.R. § 4.2 (2005);
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Such is the
case here.
All potentially applicable diagnostic codes must be
considered when evaluating disability. However, care must be
taken not to evaluate the same manifestations of disability
under more than one applicable code. This would constitute
"pyramiding." See 38 C.F.R. § 4.14 (2005). Where,
however, separate and distinct manifestations have arisen
from the same injury, separate disability ratings may be
assigned where none of the symptomatology of the conditions
overlaps. See Esteban v. Brown, 6 Vet. App. 259 (1994).
When applying the rating schedule, it is not expected,
especially with the more fully described grades of
disabilities that all cases will show all the findings
specified. 38 C.F.R. § 4.21 (2005).
The words "slight," "moderate" and "severe" as used in the
various diagnostic codes are not defined in the VA Schedule
for Rating Disabilities. Rather than applying a mechanical
formula, the Board must evaluate all of the evidence, to the
end that its decisions are "equitable and just." 38 C.F.R. §
4.6 (2005). It should also be noted that use of terminology
such as "severe" by VA examiners and others, although an
element of evidence to be considered by the Board, is not
dispositive of an issue. All evidence must be evaluated in
arriving at a decision regarding an increased rating. 38
C.F.R. §§ 4.2, 4.6 (2005).
During the pendency of this appeal, the regulations relating
to skin disabilities were amended effective August 30, 2002.
See 67 FR 49,596 (July 31, 2002). In keeping
with VA practice and appropriate precedent, the rating agency
should apply the version of the regulation that is most
favorable to the veteran, since the regulations changed
during the pendency of his appeal. See VAOPGCPREC 7-03
(2003).
When regulations are changed during the course of the
veteran's appeal, the presumption of non-retroactivity
applies in the absence of expressed agency intent.
Landgraf v. USI Film Products, 511 U.S. 244 (1994);
VAOPGCPREC 7-2003 (VA must give effect to the court's
explanation of the prevailing law).
As a general matter, regulations that liberalize the criteria
for entitlement to compensation may be applied to pending
claims because their effect would be limited to matters of
prospective benefits. VAOPGCPREC 7-2003. Likewise, the
effective date of benefits awarded pursuant to a liberalizing
regulation may be no earlier than the effective date of the
regulation. 38 U.S.C.A. § 5110(g).
In contrast, the regulations that restrict the bases for
entitlement to a benefit might have disfavored retroactive
effects in pending claims and would not apply retroactively
in determining a claimant's entitlement to benefits, absent
expressed agency intent. VAOPGCPREC 7-2003.
It is evident from a review of both the February 2005 and
January 2006 supplemental statements of the case (SSOC's)
that the RO has considered the new skin rating criteria.
The appellant's pseudofolliculitis barbae is rated as 10
percent disabling under DC 7814 (in effect prior to August
30, 2002), which pertained to tinea barbae. The regulations
directed that tinea barbae was to be rated as eczema,
dependent upon location, extent, and repugnant or otherwise
disabling character of manifestations.
Under the criteria in effect prior to August 30, 2002, DC
7800 (pertaining to disfiguring scars of the head, face, or
neck) provided a 10 percent rating for disfiguring scars of
the head, face or neck which were moderately disfiguring. A
30 percent rating was warranted for severe scars, especially
if producing a marked and unsightly deformity over the
eyelids, lips or auricles. A 50 percent rating was warranted
where there was complete or exceptionally repugnant deformity
of one side of the face or marked or repugnant bilateral
disfigurement. The note following the rating criteria stated
that, when in addition to tissue loss and cicatrization there
was marked discoloration, color contrast, or the like, the 50
percent rating may be increased to 80 percent, the 30 percent
rating to 50 percent, and the 10 percent rating to 30
percent. Additionally, it was stated that the most
repugnant, disfiguring conditions, including scars and
diseases of the skin, may be submitted for central office
rating, with several unretouched photographs.
Under DC 7806 (pertaining to eczema), as in effect prior to
August 30, 2002, a 10 percent rating was warranted where
there was exfoliation, exudation or itching, if involving an
exposed surface or extensive area. A 30 percent rating was
warranted with constant exfoliation or itching, extensive
lesions, or marked disfigurement. Finally, a 50 percent
rating was warranted where there was ulceration or extensive
exfoliation or crusting, and systemic or nervous
manifestations, or exceptionally repugnant.
Under the criteria in effect since August 30, 2002, scarring
causing disfigurement of the head face or neck is rated with
reference to the following 8 characteristics of
disfigurement: 1) Scar 5 or more inches (13 or more cm.) in
length; 2) Scar at least one-quarter inch (0.6 cm.) wide at
widest part; 3) Surface contour of scar elevated or depressed
on palpation; 4) Scar adherent to underlying tissue; 5) Skin
hypo-or hyper-pigmented in an area exceeding six square
inches (39 sq. cm.); 6) Skin texture abnormal (irregular,
atrophic, shiny, scaly, etc.) in an area exceeding six
square inches (39 sq. cm.); 7) Underlying soft tissue missing
in an area exceeding six square inches (39 sq. cm.); 8) Skin
indurated and inflexible in an area exceeding six square
inches (39 sq. cm.). A minimum 10 percent rating is provided
for having one of the above characteristics of disfigurement.
38 C.F.R. § 4.118, Diagnostic Code 7800 (2005). A 30 percent
rating is warranted with visible or palpable tissue loss and
either gross distortion or asymmetry of one feature or paired
set of
features (nose, chin, forehead, eyes (including eyelids),
ears (auricles), cheeks, lips), or; with two or three
characteristics of disfigurement. Id. Note (3) of DC 7800
directs that unretouched color photographs be taken into
consideration when evaluating these criteria.
The new rating criteria under DC 7806 (pertaining to
dermatitis or eczema) provides a 0 percent rating for skin
disabilities that affect less than 5 percent of the entire
body or less than 5 percent of exposed areas and no more than
topical therapy required during the past 12-month period. A
10 percent rating is warranted if at least 5 percent but less
than 20 percent of the entire body or at least 5 percent but
less than 20 percent of exposed areas affected; or
intermittent systemic therapy such as corticosteroids or
other immunosuppressive drugs required for a total duration
of less than 6 weeks during the past 12-month period. A 30
percent rating is warranted under the new criteria if the
eczema affects 20 to 40 percent of the entire body or 20 to
40 percent of exposed areas affected; or systemic therapy
such as corticosteroids or other immunosuppressive drugs
required for a total duration of 6 weeks or more, but not
constantly, during the past 12 month period. Lastly, a 60
percent rating is warranted under the new criteria if more
than 40 percent of the entire body or more than 40 percent of
exposed areas are affected, or; constant or near-constant
systemic therapy such as corticosteroids or other
immunosuppressive drugs required during the past 12-month
period. 38 C.F.R. § 4.118, DC 7806 (2005).
Finally, under DC 7813, dermatophytosis (ringworm; of body,
tinea corporis; of head, tinea capitis; of feet, tinea pedis;
of beard area, tinea barbae; of nails, tinea unguium; of
inguinal area (jock itch), tinea cruris), is to be rated as
disfigurement of the head, face, or neck (DC 7800, scars,
(DC's 7801, 7802, 7803, 7804, or 7805), or dermatitis (DC
7806), depending upon the predominant disability. It is
noted that DC 7801 pertains to scars, other than the head,
face, or neck that are deep and cause limited motion, and
DC's 7802, 7803, and 7804 each provide for a maximum rating
of 10 percent. DC 7805 pertains to other scars and directs
that they be rated on limitation of function of the affected
part.
A September 1991 VA general medical examination report
diagnosed folliculitis and pseudofolliculitis. The examiner
stated that this seemed to be a recurrent problem, but that
it seemed to be inactive at the time of the examination. It
was noted that the appellant reported that the only problem
with respect to his skin disorder was that of pruritis. The
veteran reported that he was actively treating his skin
disorder with various topical ointments.
A September 1995 VA general medical examination report stated
that, upon physical examination, there was demonstrated
pseudo barbae folliculitis of the neck bilaterally and of the
cheeks. It was stated that the appellant was wearing a
beard, which minimized the problem. It was also stated that
he used hydrocortisone cream with relief. The assessment
included pseudo barbae folliculitis, which the examiner
stated was still present, mainly on the right side of the
neck.
A November 1995 VA progress note stated that it was a follow-
up visit for, inter alia, pseudofolliculitis barbae. It was
stated that the beard was grown in with evidence of mild
folliculitis on the neck and that it was still itching.
A June 2000 VA skin diseases examination report stated that
there were multiple comedones scattered over the appellant's
forehead and cheeks. There were several small 2mm tan
papules noted over the beard areas and chin. There was a
beard over the lower face with hairs measuring 2 to 3mm in
length. There were no definite pustules noted. The
impression was pseudofolliculitis barbae.
In a November 2004 VA examination report it was stated that
there were no objective manifestations of pseudofolliculitis
barbae at the time of the examination. The appellant was
noted to have a short beard and that, within the beard, there
were a few of tinea versicolor patches visible, as there were
on the scalp, but no visible manifestations of
pseudofolliculitis barbae. Specifically, the examiner stated
that there was no exudate, no lesions, and no disfigurement.
The diagnosis was "[n]o clinical manifestations of
pseudofolliculitis barbae."
The preponderance of the evidence is against the appellant's
claim and an increased rating for pseudofolliculitis is not
warranted under either the old or new skin rating criteria.
As noted above, the current medical evidence of record states
that there are no visible manifestations of
pseudofolliculitis barbae. Where, as here, entitlement to
compensation has already been established and an increase in
the disability rating is at issue, the present level of
disability is of primary concern; the regulations do not give
past medical reports precedence over current findings. 38
C.F.R. § 4.2 (2005); see also Francisco, supra. Accordingly,
the veteran's claim must be denied.
As the preponderance of the evidence is against the claim,
the benefit of the doubt
rule is not applicable. 38 U.S.C.A. § 5107(b) (West 2002);
38 C.F.R. § 3.102 (2005); Gilbert v. Derwinski, 1 Vet. App.
49, 54-56 (1990).
II. TDIU
Total disability ratings for compensation may be assigned,
where the schedular rating is less than total, when the
veteran is unable to secure or follow a substantially gainful
occupation as a result of service-connected disabilities,
provided that if there is only one such disability, such
disability shall be ratable as 60 percent or more and if
there are two or more disabilities, there shall be at least
one disability ratable at 40 percent or more and sufficient
additional disability to bring the combined rating to 70
percent or more. 38 C.F.R. § 4.16(a) (2005). Here, the
appellant is service-connected for migraine headaches, rated
as 30 percent disabling, spondylolisthesis, L5-S1, rated as
20 percent disabling, and pseudofolliculitis barbae, rated as
10 percent disabling. His combined rating is 50 percent.
Given the foregoing, the appellant does not meet the minimum
schedular requirements for a TDIU. 38 C.F.R. § 4.16(a)
(2005).
However, it is the established policy of VA that all veterans
who are unable to secure and follow a substantially gainful
occupation by reason of service-connected disabilities shall
be rated totally disabled. 38 C.F.R. § 4.16(b) (2005). In
such instances, the matter should be submitted by the rating
board to the Director, Compensation and Pension Service, for
extra-schedular consideration. The Board cannot award TDIU
under 4.16(b) in the first instance; the RO must first submit
the claim to the Director, Compensation and Pension Service,
for extra-schedular consideration. See Bowling v. Principi,
15 Vet. App. 1 (2001).
The relevant medical evidence of record includes a July 1988
VA medical report by Julian Libet, Ph.D., that listed Axis I
diagnoses of dysthymia, psychological factors affecting
physical condition, and other interpersonal problems. An
Axis II diagnosis of mixed personality disorder with
prominent features of paranoid personality and with
narcissistic and antisocial traits was listed. Also, an Axis
III diagnosis of lumbosacral strain with chronic back pain
(spondylolisthesis at L5) with TENS unit in place was listed.
It was noted that the appellant had documented past failures
both in the educational and vocational spheres. It was then
stated that unsatisfactory completion of educational programs
and at maintaining effective interpersonal relations in the
employment setting were not due to an existent major mental
illness, but were secondary to the combined effects of
significant back pain, headaches, grossly inadequate coping
skills for pain from either source, and "characterological"
frailties leading to disturbances in interpersonal
relationships (especially with supervisors). It was stated
that the appellant's prognosis for successful educational or
vocational endeavors was extremely poor. It was concluded:
Given [the appellant's] (a) severity of dysthymia,
(b) lack of adequate coping responses to stress
(severity of mixed personality disorder), (C)
existent disabling medical problems (substantial
pain sequallae [sic]), (d) long history of
complete failure both in interpersonal
relationships and in vocational/educational
settings, and the interaction of (a), (b), (c),
(d); [the appellant], in my view, is totally
incapacitated from satisfactory functioning in any
vocational sphere.
A September 1992 Counseling Record/Narrative Report stated
that the appellant did suffer from a number of restrictions
and limitations associated with his service-connected
conditions, but that the appellant's psychiatric condition
continued to be the major impairment to his ability to
function in employment. It was further stated that the
appellant "does have an impairment of employability and that
the service-connected condition does materially contribute to
this impairment." However, it was also emphasized that he
had a serious employment handicap related to his poor history
of adjustment to work and training.
An October 1995 psychological evaluation report stated that
the appellant produced an invalid MMPI-2 profile,
characterized by extreme endorsement of an extraordinary
range of the most severe pathological symptoms. It was
stated that his self-reported distress exceeded and did not
resemble that typically acknowledged by psychiatric
inpatients in catastrophic distress. The examiner stated
that the appellant's long history of medical problems and
very poor social and vocational adjustment implied that he
may be functionally unable to maintain steady work and
provide for himself financially.
An August 1998 Counseling Record/Narrative Report noted the
appellant's service-connected disabilities, but stated that
his psychiatric condition and personality disorder seemed to
be the overriding element in his inability to get or keep a
job. It was stated that it did appear that the appellant had
an employment handicap. It was stated further,
"[l]imitations from the service and non-service-connected
conditions prevent this veteran from competing in the labor
market."
A May 2000 VA spine examination report listed an impression
of low back pain with the only focal findings being some pain
on palpation of the lumbosacral spine and the obtaining of
the reflexes in the lower extremities with the Jendrassik
maneuver. The examiner stated that he felt that the
appellant could do work which was of a sedentary nature and
that did not include any jumping, running, heavy lifting,
pushing, pulling, etc. He did state, though, that this may
be changed after he received the report of the lumbosacral
spine X-ray. In this regard, however, the report stated that
X-rays revealed an unremarkable lumbar spine. Spina bifida
occulta was present at the L5 level.
A July 2001 VA progress note indicated that the appellant had
been fired from his job after having tested positive for
cocaine.
Finally, the November 2004 VA examination report noted that
the appellant reported having migraine headaches
characterized by intense pain, photophobia, and nausea, which
occurred one to three times a week and lasted three to four
hours at a time. The appellant reported that during the
headaches he can be comfortable only lying in bed and that
this has caused multiple missed work days and loss of prior
jobs. The examiner stated that the examination was normal
except for the presence of a somewhat depressed affect. The
examiner stated that, "[i]n summary, there are no clinical
findings to support a diagnosis of migraines." It was noted
that the diagnosis was based purely on his history. The
examiner reported that the appellant had small, scattered,
hypopigmented spots on his mostly bald head, which he stated
were very characteristic and typical of tinea versicolor. He
had no symptoms, which the examiner commented was also
characteristic of this condition. The examiner also stated
that there were no objective manifestations of
pseudofolliculitis barbae at the time of the examination.
The appellant was noted to have a short beard and that,
within the beard, there were a few of the tinea versicolor
patches visible, as on the scalp, but no visible
manifestations of pseudofolliculitis barbae. Specifically,
the examiner stated that there was no exudate, no lesions,
and no disfigurement. He concluded, "[n]either of these
conditions should be considered in any way adversely
affecting his ability to work."
The examiner stated that the appellant reported having quit
his last job in February 2003 as a sterile prep technician at
the VA hospital because of pain during lifting and pushing
activities. Upon examination, it was remarked that the
appellant moaned and groaned with every movement. He had 30
degrees of flexion, 20 degrees of extension, 20 degrees of
lateral bending bilaterally, and 30 degrees of rotation
bilaterally. The appellant complained of constant pain
throughout this process. The examiner stated that there was
no additional limitation due to pain, fatigue, weakness, or
lack of endurance following repetitive use. The diagnosis
was degenerative disc disease of the lumbar spine, with
significant clinical findings of symptom exaggeration. He
was noted to walk with a slight limp, without any assistive
devices, and otherwise had a normal posture. It is
specifically stated in the report that the claims folder had
been reviewed.
The preponderance of the evidence is against the appellant's
claim, as it suggests that it is a combination of his
service-connected disabilities coupled with his non-service
connected psychiatric problems that prevent the appellant
from being unable to secure and follow a substantially
gainful occupation. In this regard, the multiple volumes of
the appellant's claims folder are replete with psychiatric
treatment reports and the aforementioned medical evidence
consistently attributes, at least in part, the appellant's
inability to obtain or maintain employment to his psychiatric
problems. Furthermore, absent from the claims folder is a
competent medical opinion which attributes the appellant's
inability to secure and follow a substantially gainful
occupation solely to his service-connected disabilities.
Based on the evidence in the record, the Board cannot
conclude that the appellant is unable to work due to his
service-connected disabilities. Again, there is no
indication in the record that the appellant's service-
connected disabilities, alone, are sufficient to prevent him
from working. Thus, the Board finds that there is no basis
for a referral to VA's Compensation and Pension Director for
initial consideration under the provisions of 38 C.F.R. §
4.16(b). Therefore, a total disability rating for
compensation purposes based on individual unemployability is
not warranted in this case, and the appellant's claim must be
denied. As the preponderance of the evidence is against the
claim for TDIU, the reasonable doubt doctrine is not for
application. 38 U.S.C.A. § 5107(b) (West 2002).
III. VCAA
The Veterans Claims Assistance Act of 2000 (VCAA), codified
as amended at 38 U.S.C. §§ 5102, 5103, 5103A, and 5107, is
applicable to all claims filed on or after the date of
enactment, November 9, 2000, or filed before the date of
enactment and not yet final as of that date. Pub. L. No.
106-475, § 7(a), 114 Stat. 2096, 2099 (2000); 38 U.S.C.A. §
5107 note (Effective and Applicability Provisions) (West
2002). Regulations implementing the VCAA were adopted. See
38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).
VA has a duty to notify the appellant and his representative
of any information and evidence needed to substantiate and
complete a claim. 38 U.S.C.A. §§ 5102 and 5103 (West 2002);
38 C.F.R. § 3.159(b). Here, a September 2005 letter informed
the appellant of what the evidence needed to show in order to
establish entitlement to TDIU and entitlement to an increased
rating. The letter also informed the appellant of VA's duty
to assist him in obtaining evidence for his claim.
A VCAA notice consistent with 38 U.S.C. § 5103(a) and
38 C.F.R. § 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim, or something to the effect that
the claimant should "give us everything you've got
pertaining to your claim(s)." This "fourth element" of
the notice requirement comes from the language of 38 C.F.R.
§ 3.159(b)(1). Here, the September 2005 VCAA notice letter
did request that the appellant send to VA any evidence in his
possession that pertained to his claims.
Also, a VCAA notice, as required by 38 U.S.C. § 5103(a), must
be provided to a claimant before the initial unfavorable
agency of original jurisdiction (AOJ) decision on a claim for
VA benefits. Here, although the initial AOJ decision was
made prior to the appellant having been informed of the VCAA,
any defect with respect to the VCAA notice requirement in
this case was harmless error. For example, after the
September 2005 VCAA letter was sent to the appellant the
claim was readjudicated by the AOJ in the January 2006
supplemental statement of the case.
Therefore, in the circumstances of this case, a remand would
serve no useful purpose. See Soyini v. Derwinski, 1 Vet.
App. 540, 546 (1991) (strict adherence to requirements in the
law does not dictate an unquestioning, blind adherence in the
face of overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). VA has satisfied its duties to
notify and to assist the appellant in this case. Further
development and further expending of VA's resources is not
warranted.
ORDER
An increased rating for pseudofolliculitis barbae is denied.
Entitlement to TDIU is denied.
____________________________________________
C.W. SYMANSKI
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs